Kraese v. Jialiang Qi et al

Filing 77

ORDER granting Defendants' 69 Motion to Limit Testimony of Dr. Stanley Dennison. The Court limits Dr. Dennison's testimony to only the facts of this case concerning his treatment and diagnosis of Plaintiff. Signed by Judge William T. Moore, Jr on 2/18/2021. (ca)

Case 4:17-cv-00166-WTM-CLR Document 77 Filed 02/18/21 Page 1 of 20

IN THE UNITED STATES DISTRICT COURT FOR

THE SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION

SHANNON KRAESE,

Plaintiff,
CASE NO. CV417-166

V.

JIALIANG QI and GD TOUR INC.,
Defendants.

ORDER

Before the Court is Defendants' Motion to Limit Testimony of

Dr. Stanley Dennison.^ (Doc. 69.) Plaintiff opposes Defendants'

motion. (Doc. 70.) For the following reasons. Defendants' motion
(Doc. 69) is GRANTED.
BACKGROUND

This

case

arises

from

a

motor-vehicle

accident

in

which

a

bus, driven by Defendant Jialiang Qi, collided with the rear of
another vehicle in May 2016. (Doc. 49, Attach. 5 at SISI 1-2.) At
the time of the accident. Defendant Qi was employed by Defendant

GD Tour Inc. (Id. at f 10.) Plaintiff, a passenger on the bus,
alleges that the accident caused her to suffer injuries to her
neck and back. (Doc. 14 at 3.) Following the accident, several

1 Defendants' motion is also a brief in opposition to Plaintiff's
motion for leave to depose Dr. Dennison for trial. (Doc. 69 at 1.)
However, the Magistrate Judge denied Plaintiff's request to depose
Dr. Dennison for trial (Doc. 73), and, therefore, the Court will
only address
Defendant's request to limit
Dr.
Dennison's
testimony.

Case 4:17-cv-00166-WTM-CLR Document 77 Filed 02/18/21 Page 2 of 20

physicians treated Plaintiff for neck and back pain, including Dr.

Stanley

Dennison,

an

anesthesiologist

and

pain

management

specialist. (Doc. 69, Attach. 3 at 11-12.)

Dr. Dennison began treating Plaintiff in 2014 after a prior
motor-vehicle accident. (Doc. 70, Attach. 1 at 4.) After the 2014

accident.

Plaintiff

complained

of

pain

in

her

neck,

back,

shoulders, and left knee. (Id.) Because of her pain, Plaintiff was

referred for an MRI of her cervical spine (^^2014 MRI"). (Id. at

5.) Dr. Dennison testified that the radiologist's report regarding
Plaintiff's 2014 MRI revealed a disc bulge at her C6-C7 disc.^ (Id.
at 6.)

Approximately two years later. Plaintiff was involved in the
subject accident and returned to Dr. Dennison for treatment. (Id.
at

4.)

After

the

subject

accident.

Plaintiff

complained

of

increased pain in her neck, back, shoulders, and left knee and

complained of new pain in her right wrist, left ankle, left
shoulder, and left arm. (Id. at 4, 6.) Dr. Dennison referred
Plaintiff for another MRI of her cervical spine (^'2016 MRI"). (Id.
at

5.)

Dr.

regarding

Dennison

Plaintiff's

testified

2016

MRI

that

the

revealed

radiologist's

a

report

^^broad-based

disc

herniation indenting the anterior thecal sac" at Plaintiff s C6-

2 Dr. Dennison did not have the 2014 MRI film or the 2016 MRI film

with him at his deposition. (Doc. 70, Attach. 1 at 17.) Rather
than refer to the films. Dr. Dennison based his testimony about

the MRIs on radiologists' reports interpreting the results of the
MRIs. (Id.)

Case 4:17-cv-00166-WTM-CLR Document 77 Filed 02/18/21 Page 3 of 20

C7

disc.

(Id.

at

6.)

In

June

2016,

Dr.

Dennison

performed

a

percutaneous disc decompression at Plaintiff's C6-C7 disc. (Id.)
During his deposition. Dr. Dennison opined that he performed the
cervical decompression at Plaintiff s C6-C7 disc because of the

subject accident's effects on Plaintiff. {Id.) Dr. Dennison based
his causation opinion on Plaintiff ^^complaining of pain" and the
differences between the results of Plaintiff's 2014 MRl and the
results of her 2016 MRl. (Id.)

Although the deadline to disclose testifying experts was

January 9, 2019 (Doc. 39), Plaintiff did not identify Dr. Dennison
as an expert witness. Further, Plaintiff did not provide a written

report or summary of Dr. Dennison's opinions. Plaintiff's sole
disclosure regarding expert witnesses came in her response to

Defendants' first interrogatories, in which she stated that she

^^may call on [her] physicians for expert opinions concerning
Plaintiff's rendered treatment." (Doc. 69, Attach. 2 at 3.)
ANALYSIS

Defendants

Dennison.

(Doc.

move

69.)

the

Court

to

Defendants

limit

agree

Plaintiff s treating physician, can

the

that

testimony of

Dr.

Dennison,

Dr.

as

provide factual testimony

concerning his diagnosis and treatment of Plaintiff. (Id. at 10.)
However, Defendants seek to prevent Dr. Dennison from providing

opinion testimony regarding the cause of Plaintiff s C6-C7 disc
injury and regarding the differences between Plaintiff's 2014 MRl

Case 4:17-cv-00166-WTM-CLR Document 77 Filed 02/18/21 Page 4 of 20

results and 2016 MRI results. (Id. at 4-5.) Defendants argue that

Dr.

Dennison's opinions on these matters exceed the scope

of

permissible lay testimony. (Id.) Defendants argue that, because

Dr. Dennison's opinions constitute expert testimony, his opinions
should be excluded for two reasons: (1) Plaintiff failed to comply

with the expert disclosure requirements of Federal Rule of Civil
Procedure 26; and (2) Dr. Dennison's opinions fail to meet the

reliability

standards

established

in

Daubert

v.

Merrell

Dow

Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed.
2d 469 (1993). (I^ at 8, 18.)

In

response.

Plaintiff

avers that

Dr.

Dennison

properly

limited his testimony to facts about his care and treatment of
Plaintiff and, therefore. Plaintiff was not required to comply

with Rule 26's disclosure requirements.^ (Doc. 70 at 3.) Plaintiff,
however, does not discuss whether Dr. Dennison's opinions meet the

reliability standards established in

Daubert. The Court will

address whether Dr. Dennison, as Plaintiff's treating physician.

3 Plaintiff, in her response, also argues that Defendants' motion
should be denied as untimely. (Doc. 70 at 2-3.) Specifically,
Plaintiff contends that motions to exclude expert witnesses were

due March 22, 2019 and that, because Defendants' current motion is
a motion to exclude Dr. Dennison, it was due on March 22nd. (Id.)

The Court disagrees. As noted by the Magistrate Judge, Defendants'
current motion is construed as a motion in limine. (Doc. 73 at 1.)

As such. Defendants' motion is timely. See S.D. Ga. L.R. 7.4
(^^Unless otherwise directed, motions in limine shall be filed no
later than five (5) days prior to the pretrial conference, if

practicable; otherwise, such motions may be filed up to the time
of trial.").

Case 4:17-cv-00166-WTM-CLR Document 77 Filed 02/18/21 Page 5 of 20

gave expert testimony and whether Plaintiff s failure to comply
with Rule 26 warrants exclusion of Dr. Dennison's testimony.
I.

WHETHER DR. DENNISON PROFFERED EXPERT OPINIONS

To begin. Defendants argue that Dr. Dennison provided expert
testimony during his deposition, and, therefore. Plaintiff was

required to disclose Dr. Dennison as an expert under Rule 26. (Doc.
69 at 8.) Specifically, Defendants aver that Dr. Dennison's opinion

regarding the cause of Plaintiff's cervical spine injury exceeds
the scope of permissible lay testimony by a treating physician.
(Doc. 69 at 10.) In contrast. Plaintiff argues that Dr. Dennison,

as Plaintiff's treating physician, can opine on the cause of her

injuries

because

this

testimony

relates to

his

treatment

of

Plaintiff and, therefore, is not considered expert testimony.
(Doc. 70 at 3, 5.)

'MTlhe designation of a treating physician as a fact versus

an expert witness depends on the nature of the testimony the
witness intends to offer." Patrick v. Henry Cty., No. 1:13-CV-

01344-RWS, 2016 WL 2961103, at *2 (N.D. Ga. May 23, 2016). "'Non-

expert

(or

lay)

witnesses

may

only

testify

to

opinions

or

inferences ^which are (a) rationally based on the perception of
the witness, and (b) helpful to a clear understanding of the
witness' testimony or the determination of a fact in issue, and
(c)

not

knowledge

based

on

within

scientific,

the

scope

of

technical,

Rule

or

other

702.' " United

specialized

States

v.

Case 4:17-cv-00166-WTM-CLR Document 77 Filed 02/18/21 Page 6 of 20

Henderson, 409 F.3d 1293, 1300 (llth Cir. 2005) (quoting Fed. R.

Evid. 701). In comparison. Rule 702 '^allows ^a witness qualified

as

an

expert

education'

by

to

knowledge,

testify

in

skill,

the

form

experience,
of

an

training,

opinion

based

or
on

^scientific, technical, or other specialized knowledge,' so long
as certain reliability requirements are satisfied." Eberhart v.
Novartis Pharms. Corp., 867 F. Supp. 2d 1241, 1251 (N.D. Ga. 2011)
(quoting Fed. R. Evid. 702).

treating physician is not considered an expert witness
if

he

or

she

testifies

about

observations

based

on

personal

knowledge, including the treatment of the party.' " Williams v.
Mast Biosurgery USA, Inc., 644 F.3d 1312, 1317 (llth Cir. 2011)

(quoting Davoll v. Webb, 194 F.3d 1116, 1138 (10th Cir. 1999)).
However,

^^once

the

treating

physician

expresses

an

opinion

unrelated to treatment which is *based on scientific, technical,

or other specialized knowledge,' that witness is offering expert

testimony

for

which

the

court

must

perform

its

essential

gatekeeping function as required by Daubert." Wilson v. Taser
Int'l, Inc., 303 F. App'x 708, 712 (llth Cir. 2008) (citing
Henderson, 409 F.3d at 1300) ((finding a treating physician's

opinion on causation was expert testimony because '^his opinion
regarding the cause of [plaintiff's] injuries was not needed to
explain

his

[plaintiff's]

decision

making

treatment").

In

process,

nor

other

words,

did

it

^^when

pertain
a

to

treating

Case 4:17-cv-00166-WTM-CLR Document 77 Filed 02/18/21 Page 7 of 20

physician's testimony is based on a hypothesis, not the experience
of treating the patient, it crosses the line from lay to expert

testimony, and it must comply with the requirements of Rule 702
and the strictures of Daubert." Williams, 644

F.3d at 1317-18

(finding that the identity of a foreign substance removed from the

plaintiff's
therefore,

body '^was
was

physician);

not

necessary for

not admissible

Henderson,

409

physician's] diagnosis of the

her

treatment" and,

as lay testimony by a treating

F.3d

at

1300

(^MThe

treating

injury itself . . . would

be

permissible lay testimony, but her statement about the cause of
the injury was . . . a ^hypothesis' " because ^Mshe] did not need
to determine how [plaintiff] was injured to treat him in this
case.").

The Court finds that Dr. Dennison's testimony exceeds the

scope of permissible lay testimony by a treating physician. During
Dr. Dennison's deposition, the following exchange occurred:
Q: Doctor, in your opinion, was the cervical depression
at C6-C7 performed as a result of the May 2016 bus
crash?

A: Yes.

Q: Doctor, and on what basis are you making that finding
that the cervical decompression at C6-C7 was related
to the May 2016 bus crash?

A: Based on—on the patient complaining of pain as well
as the MRI findings were different.

(Doc. 70, Attach. 1 at 6.) In this exchange. Dr. Dennison opined

that the subject accident caused the injury to Plaintiff's C6-C7
7

Case 4:17-cv-00166-WTM-CLR Document 77 Filed 02/18/21 Page 8 of 20

disc. However, neither Plaintiff nor
that

Dr.

injury

Dennison

to

needed

diagnose

or

to

Dr. Dennison demonstrated

determine

treat

her

the

cause

injury.

of Plaintiff's

From

the

Court's

perspective, the cause of Plaintiff's injury did not affect Dr.

Dennison's

diagnosis

of

Plaintiff's

injury

or

Dr.

Dennison's

decision to perform the cervical decompression. Accordingly, Dr.
Dennison's testimony about his ^Miagnosis of the injury itself

. . . would be permissible lay testimony, but [his] statement about

the cause of the injury was . . . a hypothesis" because ^Mhe] did
not need to determine how [Plaintiff] was injured to treat [her]
in this case." Henderson, 409 F.3d at 1300 {internal quotations

omitted). As a result, the Court finds that Dr. Dennison's opinions

on causation qualify as expert testimony and, thus. Plaintiff was
required to comply with the disclosure requirements of Federal
Rule of Civil Procedure 26. It is undisputed that Plaintiff failed
to comply with Rule 26. (Doc. 70 at 8.)
II.

WHETHER PLAINTIFF'S
FAILURE TO COMPLY
DISCLOSURE REQUIREMENTS WAS HARMLESS

WITH

RULE

26'S

Next, Defendants argue that Plaintiff's failure to comply

with the disclosure requirements of Federal Rule of Civil Procedure
26(a)(2)(B)

warrants

the

exclusion

of

Dr.

Dennison's

expert

testimony. (Doc. 69 at 8.) In response. Plaintiff argues that Rule
26(a)(2)(B) does not apply to Dr. Dennison because he is not a

retained expert; rather. Plaintiff contends that Rule 26(a)(2)(C)

applies to Dr. Dennison as her treating physician. (Doc. 70 at 8.)
8

Case 4:17-cv-00166-WTM-CLR Document 77 Filed 02/18/21 Page 9 of 20

[A] party must disclose to other parties the identity of any
witness it may use at trial to present evidence under Federal Rule
of Evidence 702, 703, or 705." Fed. R. Civ. P. 26(a)(2)(A). Rule
26(a)(2)(B) dictates that ""'this disclosure must be accompanied by

a written report—prepared and signed by the witness—if the witness
is one retained or specially employed to provide expert testimony
in the case or one whose duties as the party's employee regularly

involve giving expert testimony." The written report must contain:
(i)

a complete statement of all opinions the witness
will express and the basis and reasons for them;

(ii)

the data or other information considered by the
witness in forming them;

(iii)

any exhibits that will be used to summarize or
support them;

(iv)

the witness's qualifications, including a list
of all publications authored in the previous ten
years;

(v)

a list of all other cases in which, during the
previous four years, the witness testified as an
expert at trial or by deposition; and

(vi)

a statement of the compensation to be paid for
the study and testimony in the case.

Fed. R. Civ. P. 26(a)(2)(B).

In

comparison.

Rule

26(a)(2)(C)

establishes

a

separate

category ^^for witnesses who will testify as fact witnesses as well
as offer expert opinions, a category into which treating physician
experts often fall." Rangel v. Anderson, 202 F. Supp. 3d 1361,
1364 (S.D. Ga. 2016). Although witnesses under Rule 26(a)(2)(C)

Case 4:17-cv-00166-WTM-CLR Document 77 Filed 02/18/21 Page 10 of 20

^'need not provide the report required by Rule 26(a)(2)(B), they
are still required to disclose the subject(s) of their expert

testimony, as well as a summary of the facts and opinions on which
they are expected to testify." Ranqel, 202 F. Supp. 3d at 1365.
As discussed above, Dr. Dennison proffered expert testimony

during

his

deposition.

Therefore,

Plaintiff

was

required

to

disclose Dr. Dennison as an expert witness under Rule 26. However,
the

Court

need

not

decide

whether

Plaintiff

was

required

to

disclose Dr. Dennison in accordance with Rule 26(a)(2)(B) or (C)

because Plaintiff concedes that she failed to comply with even the

lesser requirements of Rule 26(a) (2)(C)

(Doc. 70 at 8.) Rather,

Plaintiff

comply

argues

that

her

failure

to

with

Rule

26's

disclosure requirements was harmless.

^ The Court notes that Plaintiff's only disclosure concerning

expert
witnesses
came
in
response
to
Defendants' first
interrogatories, in which Plaintiff stated that she ^^may call on
[her] physicians for expert opinions concerning Plaintiff's
rendered treatment." (Doc. 69, Attach. 2 at 3.) In the Court's
view, this statement does not satisfy Rule 26's disclosure

requirements because it plainly fails to identify Dr. Dennison by
name, indicate what opinion he will offer, or indicate on what
facts he will base his opinion. See Kondragunta v. Ace Doran
Hauling & Rigging Co., No. 1:ll-cv-01094-JEC, 2013 WL 1189493, at
*6 (N.D. Ga. Mar. 21, 2013) (concluding that plaintiff did not

comply with Rule 26(a)(2)(C) because "[t]he reader of plaintiff's
disclosure has no idea what opinion the doctor will offer or on
what facts the doctor will base that opinion."); Martin v. WalMart Stores East, LP., CV418-197, 2020 WL 5949222, at *2-3 (S.D.
Ga. Oct. 7, 2020) (concluding that plaintiff violated Rule 26's

disclosure requirements because
only the physicians were going
^causation.' ")
.
10

laintiff's disclosure state[d]
to testify to treatment and

Case 4:17-cv-00166-WTM-CLR Document 77 Filed 02/18/21 Page 11 of 20

court may exclude affidavits or testimony from a witness
when ^a party fails to provide information or identify a witness
as required by Rule 26(a).' " Kondraqunta v. Ace Doran Hauling &
Rigging Co., No. 1:ll-cv-01094-JEC, 2013 WL 1189493, at *7 (N.D.

Ga. Mar. 21, 2013) (citing Fed. R. Civ. P. 37(c)(1)).

^However,

a court does not have to impose those sanctions if it believes the
failure was substantially justified or is harmless.' " Rangel, 202

F. Supp. 3d at 1366 (citing Kondragunta, 2013 WL 1189493, at *7).
When determining whether an insufficient disclosure was harmless,

courts have applied a five-factor test. Rangel, 202 F. Supp. 3d at
1366 (citing Kondragunta, 2013 WL 1189493, at *1); Bruce v. Classic
Carrier, Inc., No. 1:ll-cv-01472-JEC-JCF, 2012 WL 12835705, at *3
(N.D. Ga. Oct. 31, 2012). The five factors are:

(1)

the surprise to the party against whom the evidence
would be offered;

(2)

the ability of that party to cure the surprise;

(3)

the extent to which allowing the evidence would
disrupt the trial;

(4)

(5)

the importance of the evidence; and

the

nondisclosing

party's

explanation

for

its

failure to disclose the evidence.

Rangel, 202 F. Supp. 3d at 1366 (citing Cambridge Univ. Press v.
Becker, 1:08-cv-1425-ODE, 2010 WL 6067575, at *3 (N.D. Ga. Sept.

21, 2010)); Abdulla v. Klosinski, 898 F. Supp. 2d 1348, 1359 (S.D.
Ga. 2012), aff'd, 523 F. App'x 580 (11th Cir. 2013).

11

Case 4:17-cv-00166-WTM-CLR Document 77 Filed 02/18/21 Page 12 of 20

In the Court's view. Plaintiff's insufficient disclosure was

not harmless. First, ^Mi]t is not enough for Plaintiff to argue
that Defendant should not be surprised by Dr. [Dennison's] expert

opinion because he was listed as a treating physician." Ranqel v.
Anderson, 202 F. Supp. 3d 1361, 1366 (S.D. Ga. 2016). Although
Plaintiff, in her initial disclosures, indicated that Dr. Dennison

was a '^person[] likely to have discoverable information . . ."
(Doc. 69, Attach. 1 at 2), Plaintiff's only disclosure regarding

expert witnesses stated that she ^^may call on [her] physicians for
expert opinions concerning Plaintiff's rendered treatment." (Doc.
69, Attach. 2 at 3). With this statement. Plaintiff failed to

identify Dr. Dennison by name, indicate what opinion he will offer,
or indicate on what facts he will base his opinion. Without at

least a summary of Dr. Dennison's opinions or expected testimony.
Defendants' counsel could not have fully prepared to depose Dr.

Dennison. See Ranged, 202 F. Supp. 3d at 1367 (^MWJith no notice
of Dr. Karl's opinions, much less the subject matter of them.
Defendant could not have prepared to depose Dr. Karl on those
issues."); Walter Int'l Prods., Inc. v. Salinas, 650 F.3d 1402,
1413 (11th Cir. 2011) (''[I]t is harmful to deprive opposing counsel

of the expert's report before his deposition. The district court
did not abuse its discretion when it excluded the testimony of

[the] experts."). ''This surprise defeats the purpose of Rule 26's

12

Case 4:17-cv-00166-WTM-CLR Document 77 Filed 02/18/21 Page 13 of 20

expert disclosure requirements." Ranqel, 202 F. Supp. 3d at 1367.

Accordingly, the first factor weighs in favor of exclusion.
As to the second factor, the Court finds that Defendants'

^^had the ability to complain, and thereby cure this surprise, prior
to the expiration of expert discovery, by advising Plaintiff that
[her] disclosures did not comply with the rule and by requesting

more specific disclosures." Kondragunta, 2013 WL 1189493, at *6.
Plaintiff deposed Dr. Dennison on July 19, 2018 (Doc. 69, Attach.
3 at 2), and Plaintiff's expert disclosures were due January 16,
2019 (Doc. 52 at 2). Yet, Defendants waited until May 1, 2020, to

complain about Plaintiff's failure to disclose Dr. Dennison's
opinions. (Doc. 69.) Defendants essentially ^'laid in wait, hoping
that [P]laintiff's

non-compliance

would doom [her] ability to

offer any expert testimony." Kondragunta, 2013 WL 1189493, at *6.
Because Defendants did not attempt to cure their surprise until
almost two years after Dr. Dennison's deposition, the second factor
weighs against exclusion.

Third, allowing Dr.

Dennison to proffer expert testimony

could disrupt litigation in this case. Although the Court has not
yet set a trial date, the discovery deadline expired two years

ago, and the Magistrate Judge has already denied Plaintiff the
opportunity

to

file

untimely

expert

disclosures.

(Doc.

52.)

Additionally, if the Court permitted Plaintiff to file a summary
of Dr. Dennison's expert opinions at this time. Dr. Dennison ^^could

13

Case 4:17-cv-00166-WTM-CLR Document 77 Filed 02/18/21 Page 14 of 20

change his opinions and his basis for them in order to skirt the
Defendants' Daubert challenge." Ranqel, 202 F. Supp. 3d at 1367;
Martin

v.

Wal-Mart

5949222, at *4

Stores

(S.D.

East,

LP.,

No.

Ga. Oct. 7, 2020)

CV418-197,

2020

WL

r[A] proper curative

disclosure would be likely to interrupt the course of this case,

which

has long since

proceeded

past the close

of an

already

extended discovery period."); Thompson v. United States, No. 4:17cv-63, 2019 WL 149553, at *11 (S.D. Ga. Jan. 9, 2019) (''To permit

an expert disclosure at this late stage as to a witness known to

[p]laintiffs at the outset would undermine both sides' interest in
a prompt resolution and subvert this Court's scheduling orders,
not to mention the Federal Rules of Civil Procedure."). Thus, the

third factor weighs in favor of exclusion.
As to the fourth factor, the importance of Dr. Dennison's

expert opinions. Plaintiff has not demonstrated that the exclusion
of Dr. Dennison's expert opinions would prejudice her at trial.
See Mitchell v. Ford Motor Co., 318 F. App'x 821, 824 (11th Cir.
2009) ("The burden of establishing that a failure to disclose was

substantially justified or harmless rests on the nondisclosing
party.").

In

causation

and

the
the

Court's

view.

differences

in

Dr.

Dennison's

Plaintiff's

testimony

MRIs

is

not

on
so

important as to excuse Plaintiff's lack of disclosure. Notably,
Dr. Dennison's testimony will not be excluded in its entirety at

trial. Defendants agree that Dr. Dennison may still testify about

14

Case 4:17-cv-00166-WTM-CLR Document 77 Filed 02/18/21 Page 15 of 20

his treatment and diagnosis of Plaintiff. Further, Plaintiff could
still

prove

causation

using

her

medical

records

witnesses. See Rangel, 202 F. Supp. 3d at 1367

and

other

. . Plaintiff

could provide evidence of causation using her medical records and
other witnesses."). Accordingly, the fourth factor weighs in favor
of exclusion.

Finally, Plaintiff has not offered any explanation for her
failure to disclose Dr. Dennison as an expert. Plaintiff merely

acknowledges her failure and asks that the Court find it was
harmless. Moreover, even after being put on notice of her failure
to disclose. Plaintiff has still failed to provide a summary of

Dr.

Dennison's

opinions.

See

Martin,

2020

WL

5949222,

at *4

(finding plaintiff's failure to disclose expert testimony was not
harmless, in part, ^'because plaintiff has still failed to state

the opinions that her proposed experts are likely to make."). Based
on Plaintiff's blatant disregard for Rule 26's requirements, the

fifth factor weighs heavily in favor of excluding Dr. Dennison's
expert opinions.

The Court does '^not commend either party on its efforts to

resolve this dispute." Griffith v. Gen. Motors Corp., 303 F.3d
1276, 1283 (11th Cir. 2002) (criticizing plaintiff for failing to

comply with Rule 26's disclosure requirements and criticizing
defendant for ^^allow[ing] this impasse to continue well beyond the

point of good faith efforts to resolve the issue without court

15

Case 4:17-cv-00166-WTM-CLR Document 77 Filed 02/18/21 Page 16 of 20

intervention, never moving for an order requiring any more detailed

response

under

Rule

26.").

Although

Defendants

waited

an

unreasonable amount of time to complain about Plaintiff's lack of
disclosure. Plaintiff has not provided any explanation for her

noncompliance with Rule 26 and has still not provided a written
report or summary of Dr. Dennison's opinions. Considering the
factors above, the Court finds that Plaintiff's failure to disclose
Dr.

Dennison in accordance with

Rule 26 was not harmless. As a

result. Rules 26 and 37 compel the Court to exclude Dr. Dennison's

expert testimony on causation and Defendants' motion (Doc. 69) is
GRANTED. Consequently, the Court limits Dr. Dennison's testimony

to only the facts and observations he obtained firsthand during
the course of his treatment and diagnosis of Plaintiff.
III. WHETHER

DR.

DENNISON'S

OPINION

SATISFY

THE

STANDARDS

ESTABLISHED IN DAUBERT AND RULE 702

Defendants also argue that the

Court should exclude

Dr.

Dennison's opinion on causation because his testimony fails to
meet the strictures established in Rule 702 and Daubert. (Doc. 69

at 16.) As previously mentioned. Dr. Dennison based his opinion
that

the

subject

accident

caused

Plaintiff's

cervical

spine

injury, in part, on the differences he observed between Plaintiff's
2014 MRI results and her 2016 MRI results. (Doc. 70, Attach. 1 at

6.) In light of the fact that Dr. Dennison based his causation

opinion on his observation of differences between Plaintiff s 2014
and

2016

MRI

results.

Dr.

Dennison's
16

testimony

about

those

Case 4:17-cv-00166-WTM-CLR Document 77 Filed 02/18/21 Page 17 of 20

differences

is,

like

his

testimony

about

causation,

expert

testimony. As such, his testimony is subject to the standards
established in Rule 702 and Daubert. Defendants argue that Dr.

Dennison's testimony fails to meet those standards because (1) Dr.
Dennison, as a pain management specialist, is not qualified to

opine on differences between Plaintiff's 2014 and 2016 MRI results;
and (2) Dr. Dennison did not apply reliable principles and methods
when opining on Plaintiff's MRI results. (Doc. 69 at 18-19.)
The admission of expert testimony is controlled by Federal
Rule of Evidence 702:

A witness who is qualified as an expert by knowledge,
skill, experience, training, or education may testify in
the form of an opinion or otherwise if:
(a)

the expert's scientific, technical, or other
specialized knowledge will help the trier of fact
to understand the evidence or to determine a fact
in issue;

(b)

the testimony is based on sufficient facts or data;

(c)

the testimony is the product of reliable principles
and methods; and

(d)

the expert has reliably applied the principles and
methods to the facts of the case.

The trial judge is assigned ''the task of ensuring that an expert's
testimony both rests on a reliable foundation and is relevant to
the task at hand." Daubert v. Merrell Dow Pharm., Inc., 509 U.S.

579, 597, 113 S. Ct. 2786, 2799, 125 L. Ed. 2d 469 (1993). "As the

Supreme Court made abundantly clear in Daubert, Rule 702 compels
district courts to

perform the
17

critical

gatekeeping function

Case 4:17-cv-00166-WTM-CLR Document 77 Filed 02/18/21 Page 18 of 20

concerning

the

admissibility

of

expert

scientific

evidence."

United States v. Frazier, 387 F.3d 1244, 1260 (llth Cir. 2004)

(internal quotation omitted). This gatekeeping function equally
applies to the admissibility of expert technical evidence. Id.;
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147-49, 119 S. Ct.
1167, 1174-75, 143 L. Ed. 2d 238 (1999).

The Eleventh Circuit Court of Appeals has explained that

district courts fulfill the gatekeeping function by engaging in a
three-part inquiry, considering whether

(1) the expert is qualified to testify competently
regarding the matters he intends to address; (2) the
methodology by which the expert reaches his conclusions
is sufficiently reliable as to be determined by the sort
of inquiry mandated in Daubert; and (3) the testimony
assists the trier of fact, through the application of
scientific . . . expertise, to understand the evidence
or to determine a fact in issue.

Frazier, 387 F.3d at 1260. ''The proponent of expert testimony

always bears 'the burden to show that his expert is qualified to
testify

competently

regarding

the

matters

he

intend[ed]

to

address; [] the methodology by which the expert reach[ed] his
conclusions is sufficiently reliable; and [] the testimony assists
the trier of fact.' " United States v. Fraizer, 387 F.3d 1244,

1260 (llth Cir. 2004) (quoting McCorvey v. Baxter Healthcare Corp.,
298 F.3d 1253, 1257 (llth Cir. 2002)).

In her response. Plaintiff does not specifically address

Defendants'
argued

arguments

generally that

concerning
Dr.

Daubert;

Dennison
18

did

instead.

Plaintiff

not offer any expert

Case 4:17-cv-00166-WTM-CLR Document 77 Filed 02/18/21 Page 19 of 20

testimony

because

''evaluation

However,

and

as

Dr.

treatment

previously

Dennison's
of

testimony

Plaintiff."

discussed.

Dr.

(Doc.

concerned
70

at

Dennison's

3,

his
6.)

opinions

concerning the cause of Plaintiff's cervical spine injury is expert

testimony. As such. Dr. Dennison's causation opinion and his basis
for reaching his causation opinion—that is, the differences he
observed

between

Plaintiff s

MRI

results—must

satisfy

the

standards set forth in Daubert.

Because Plaintiff has plainly failed to argue or discuss

whether Dr. Dennison's opinions meet the standards established in
Daubert,

the

Court

need

not

undertake

an

extensive

Daubert

analysis. Plaintiff has not made any effort to lay the foundation
for the admission of Dr. Dennison's opinions. Plaintiff's failure
to "show that [her] expert is qualified to testify competently

regarding the matters he intend[ed] to address . . . ." warrants
the exclusion of Dr. Dennison's opinions to the extent they exceed
the scope of his care and treatment of Plaintiff. See Jones v.
Anderson, No. 5:17-cv-77, 2018 WL 2717221, at *10 (S.D. Ga. June

6, 2018) (excluding many of plaintiff's expert's opinions because

plaintiff, "despite having filed two briefs, [] failed to make the

specific showings necessary to lay the requisite foundation for
[his] expert['s] opinions"). It is not the Court's burden to sift
through the record and cobble together support for Dr. Dennison's
opinions. Cooke ex rel. Estate of Tessier v. Sheriff of Monroe

19

Case 4:17-cv-00166-WTM-CLR Document 77 Filed 02/18/21 Page 20 of 20

Cty., Fla., 402 F.3d 1092, 1113 (11th Cir. 2005) ("Again, we stress

that it was [the proponent of the expert's] burden—not that of the
trial court—to lay the foundation for admission of [the expert's]

testimony."). Accordingly, Dr. Dennison's testimony concerning the
cause of Plaintiff's cervical spine injury and any differences Dr.
Dennison

observed

Plaintiff's

2016

between

MRI

Plaintiff's

results

which

he

2014

MRI

results

and

believes

support

his

causation opinion is excluded.
CONCLUSION

For the foregoing reasons. Defendants' motion (Doc. 69) is
GRANTED. As a result, the Court limits Dr. Dennison's testimony to

only the facts of this case concerning his treatment and diagnosis
of Plaintiff.

SO ORDERED this

/3"^ day of February 2021.
WILLIAM T. MOORE,
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

20